USDOL/OALJ Reporter: ARB Decision Caselist -- September 2006

USDOL/OALJ Reporter
Decisions of the Administrative Review Board
September 2006

Title: Final Decision & Order

Links: PDF

Summary:

LABOR CONDITION APPLICATION; COST OF RETURN TRANSPORTATION

In Amtel Group of Florida, Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the Respondent had sponsored the Alien/Complainant as an H-1B non-immigrant worker, and it was determined that the Employer had not effected a bona fide termination of the Complainant's employment. The ARB held that, in view of the ruling that the employment had not been terminated, the Employer was not liable for the cost of the Complainant's return transportation to Thailand. See 8 C.F.R. § 214.2(h)(4)(iii)(E) (employer liable for reasonable costs of return transportation if alien is dismissed before the end of the period of authorized admission).

LABOR CONDITION APPLICATION; ALIEN WHO WORKS IN OCCUPATION OTHER THAN THE ONE SPECIFIED IN THE LCA; APPROPRIATE WAGE LIABILITY

In Amtel Group of Florida, Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the ALJ had determined that the Complainant � a non-immigrant H-1B worker -- had performed the duties of a vice-president rather than an internal auditor as specified in the LCA. Thus, he concluded that the Respondent owed the Complainant the higher prevailing wage for a vice-president until the expiration of her H-1B visa. The ARB reversed based on 20 C.F.R. § 655.731(c)(8), which provides that if the employee works in an occupation other than the one identified on the LCA, the employer's required wage obligation is based on the occupation identified in the LCA. The ARB observed that if the Complainant had complained about the job specification or the appropriate wage, the INA contains a whistleblower provision for that purpose.

LABOR CONDITION APPLICATION; DISCRETION OF WAGE AND HOUR DIVISION TO CONSIDER COMPENSATION, FOOD ALLOWANCES AND VALUE OF FREE ROOM AND BOARD IN DETERMINING WHETHER LCA SPONSOR FULFILLED ITS REQUIRED WAGE OBLIGATIONS

In Amtel Group of Florida, Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the Respondent should have paid the Alien � an H-1B nonimmigrant worker � an annual salary of $49,500, but in fact paid her $48,78.96 and $48,503.26 for the years in question. The ARB found that the deficit was so insignificant as to be "de minimis." It also noted that the Respondent had provided a laundry allowance, a food allowance, free meals, and free room and board, and that the Wage and Hour investigator had concluded that the Respondent had fulfilled its required wage obligation in view of the compensation and the value of the room and board and food allowances. The ARB noted that the Wage and Hour Administrator is vested with "enforcement discretion" and considers the "totality of circumstances" in fashioning remedies. The ARB found the Wage and Hour calculations to be neither arbitrary nor an abuse of discretion, and therefore declined to disturb or modify those calculations.

LABOR CONDITION APPLICATION; MEANING OF "BONA FIDE TERMINATION" OF EMPLOYMENT OF H-1B NON-IMMIGRANT; EMPLOYER IS NOT REQUIRED TO ESTABLISH GOOD CAUSE, BUT MUST NOTIFY THE ALIEN, NOTIFY THE INS, AND PAY FOR RETURN TRANSPORTATION

In Amtel Group of Florida, Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the ARB summarized the regulatory framework governing payment of an H-1B non-immigrant sponsored under a labor condition application. The Board noted that an LCA stipulates the wage levels that the employer guarantees for an H-1B nonimmigrants. An employer need not compensate a nonimmigrant, however, if it has effected a " bona fide termination" of the employment relationship. 20 C.F.R. § 655.731(c)(7)(ii). The employer must notify the INS (now DHS) that it has terminated the employment relationship so that the INS may revoke approval of the H-1B visa. 8 C.F.R. § 214.2(h)(11) (2004).

In Amtel , the ALJ had determined that the Respondent had not effectuated a "bona fide termination" of the Alien/Complainant, based on the definition of "bona fide" found in Black's Law Dictionary (i.e., made with good faith, honestly, openly and sincerely). Because the Employer had not followed the procedures found in its own handbook, because a state unemployment insurance determination found that the Complainant had not been discharged for misconduct, and because the Respondent had not provided any reason for the discharge, the ALJ concluded that it was not bona fide.

The ARB, reviewing the regulatory history and the arguments of the parties and the Wage and Hour Administrator as amicus, found that the ALJ confused a determination of whether there was a valid basis or good cause for an H-1B's termination with a determination whether the employer effected a bona fide termination under the H-1B provision. The ARB held that in order to effect a bona fide termination, an employer need not establish a valid basis or good cause, but pursuant to 20 C.F.R. § 655.731(c)(7), three elements � (1) notice to the employee, (2) notice to the INS (now DHS), and (3) payment of the Alien's transportation home.

Because in the instant case there was no evidence that the Respondent notified the INS or paid for the Alien's return transportation, it failed to effectuate a "bona fide termination" under 20 C.F.R. § 655.731(c)(7)(ii) (2004). Thus, it was liable for paying the Complainant the LCA wage until the H-1B visa expired.

LABOR CONDITION APPLICATION; EMPLOYER'S LIABILITY UPON FAILURE TO EFFECT A BONA FIDE TERMINATION IS LIMITED TO REIMBURSEMENT FOR REQUIRED WAGE OBLIGATION, AND NOT UNPAID ROOM RENT OR FOOD AND LAUNDRY ALLOWANCES

In Amtel Group of Florida, Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006), the ARB held that the ALJ erred in determining that the Respondent owed reimbursement to an H-1B nonimmigrant, about whom it had failed to effect a bona fide termination in employment, for room rent and unpaid food and laundry allowances, over and above its required wage obligation to the Alien. Such reimbursement was not authorized under the INA and its implementing regulations.

Carter v. Champion Bus, Inc. , ARB No. 05-076, ALJ No. 2005-SOX-23 (ARB Sept. 29, 2006)

Title: Final Decision & Order

Links:

PDF

Summary:

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; PRECISE COMPLAINT IN WRONG FORUM GROUND MUST BE SUPPORTED WITH AN EXPRESSION OF A REASONABLE BELIEF THAT THE RESPONDENT WAS DEFRAUDING SHAREHOLDERS OR VIOLATING SECURITY REGULATIONS

In Carter v. Champion Bus, Inc. , ARB No. 05-076, ALJ No. 2005-SOX-23 (ARB Sept. 29, 2006), the Complainant alleged that his EEOC complaint and a filing with the Michigan Department of Civil Rights entitled him to equitable tolling for the filing of his SOX whistleblower complaint. The ARB held that "[t]o be considered the 'precise complaint in the wrong forum,' the EEOC complaint must demonstrate that Carter engaged in SOX-protected activity prior to his discharge. His complaints to Champion management must have provided information regarding Champion's conduct that Carter reasonably believed constituted mail, wire, radio, TV, bank, or securities fraud, or violated any rule or regulation of the SEC, or any provision of Federal law relating to fraud against shareholders." Reviewing the EEOC complaint, the ARB found that it did not contain an allegation of retaliation under SOX. The Michigan complaint contained a notation from the Complainant that he had been advised that the complaint would be more appropriate "under whistle blower protection laws." The ARB found, however, that the reference to whistleblower laws did not remedy the absence in the filing of an expression of a reasonable belief that the Respondent was defrauding shareholders or violating security regulations.

SCOPE OF ARB REVIEW; ARB WILL NOT CONSIDER ARGUMENTS AND EVIDENCE RAISED FOR THE FIRST TIME ON APPEAL

The ARB will not consider arguments and evidence raised for the first time on appeal. Carter v. Champion Bus, Inc. , ARB No. 05-076, ALJ No. 2005-SOX-23 (ARB Sept. 29, 2006).

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; FILING WITH AGENCIES NOT RESPONSIBLE FOR ADMINISTRATION OF SOX WHISTLEBLOWER PROVISION

In Carter v. Champion Bus, Inc. , ARB No. 05-076, ALJ No. 2005-SOX-23 (ARB Sept. 29, 2006), the Complainant argued on appeal that equitable tolling for the filing of his SOX complaint should be granted based on Doyle v. Alabama Power Co. , 1987-ERA-43 (Sec'y Sept. 29, 1989), which he quoted as stating that when "there is a complicated administrative procedure, and an unrepresented, unsophisticated complainant receives information from a responsible government agency, a time limit may be tolled'." The Respondent pointed out that the Complainant had misquoted the Secretary's decision by omitting the critical word "misleading," i.e., "when . . . [a] complainant receives misleading information from a responsible government agency." The Complainant then argued that the limitations period should be tolled because the EEOC and a state agency had allegedly provided him with misleading information concerning the filing of his SOX complaint. The ARB noted that it would decline to consider an issue raised for the first time on appeal, but that even the argument was properly before it, it would reject it because neither the EEOC or the state agency was the responsible government agency, because given the generic allegations made in the EEOC complaint it was hardly surprising that EEOC did not recognize a SOX complaint, and because a similar argument had been rejected in School Dist. of Allentown v. Marshall , 657 F.2d 16 (3d Cir. 1981). Ultimately, ignorance of the law is not sufficient to invoke equitable tolling.

Ciofani v. Roadway Express, Inc. , ARB No. 05-020, ALJ No. 2004-STA-46 (ARB Sept. 29, 2006)

Title: Final Decision & Order

Links: PDF

Summary:

MOOTNESS; RESPONDENT'S WITHDRAWAL OF SUSPENSION LETTERS PRIOR TO ANY LOSS OF TIME, PAY OR BENEFITS BY THE COMPLAINANT

In Ciofani v. Roadway Express, Inc. , ARB No. 05-020, ALJ No. 2004-STA-46 (ARB Sept. 29, 2006), the ARB affirmed the ALJ's recommendation that the complaint be dismissed because no genuine issue of fact existed as to whether the complaint was moot. The Respondent had permanently withdrawn suspension letters that the Complainant alleged were issued in response to protected refusals to drive under the STAA. The Respondent also had removed all reference to the suspension letters in the Complainant's personnel file, and swore that it would not use the letters in any future discipline toward the Complainant. The Complainant had not served the suspensions or suffered any loss of time, pay, or benefits as a result of the letters, nor would he suffer such losses in the future. Moreover, the ALJ found that the Complainant had not proved that his case falls within the "capable of repetition, yet evading review" exception to the mootness doctrine.

Higgins v. Glen Raven Mills, Inc. , ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006)

Title:

Final Decision & Order

Links:

PDF

Summary:

TIMELINESS OF COMPLAINT; INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT AN EXTRAORDINARY FACTOR SUPPORTING EQUITABLE TOLLING

In Higgins v. Glen Raven Mills, Inc. , ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006), the Complainant argued on appeal that he should be entitled to equitable tolling based on his original counsel's "severely ineffective assistance." The ARB, however, noted that it had consistently held that attorney error does not constitute an extraordinary factor for tolling purposes because "[u]ltimately, clients are accountable for the acts and omissions of their attorneys." Because the Complainant had neither addressed the Board's precedent, nor cited to any case law in support of his argument, it held that he was not entitled to equitable tolling of the limitations period.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING ENDS ONCE COMPLAINANT LEARNS OF LIMITATIONS PERIOD; FAILURE TO ALLEGE SUBSEQUENT TIMELY FILING IS FATAL TO THE CLAIM

In Higgins v. Glen Raven Mills, Inc. , ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006), the Board had held that the Complainant was not entitled to equitable tolling of the limitations period for ineffective assistance of counsel, but noted that even if it had found equitable tolling to be applicable, the Complainant would only have been entitled to tolling until he was informed by an OSHA employee about the 30-day limitations period. Because the Complainant did not allege that he filed a timely complaint once the clock resumed running, the Board held that he failed to allege an essential element of his case.

Innawalli v. American Information Technology Corp. , ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006)

Title: Final Decision & Order

Links: PDF

Summary:

LABOR CONDITION APPLICATION; NO-BENCHING PROVISION; CONTINUED TREATMENT OF ALIEN AS AN EMPLOYEE PAST DATE INS (NOW DHS) NOTIFIED OF TERMINATION

In Innawalli v. American Information Technology Corp. , ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006), the ARB adopted, with modification, the ALJ's recommended decision finding that the Respondent had violated the INA's "no benching" provisions, awarding back wages for the time that the Complainant was in nonproductive status due to a lack of assigned work, and awarding a $1,000 civil money penalty for wilful failure to pay the required wages. The ALJ and the ARB found that, even though the Respondent had sent letters to the Complainant in April 2002 notifying her that it no longer needed her services and also notified the INS of the same, the company continued to act as if a termination never occurred. The Complainant was asked to become certified in "Cognos," and the day after she was so certified, the Respondent updated her resume and marketed her as a "Cognos Certified Professional." It submitted her resume for a position in Chicago, sent her information about a client, and asked the Complainant several times to update her resume or fashion it in a certain way. It asked her to sign an Employee Consent form, reimbursed her for medical expenses, and filed labor certification forms with the U.S. Government representing that it was her employer and that she was in the U.S. with H-1B visa status.

LABOR CONDITION APPLICATION; NO-BENCHING PROVISION; DETERMINATION OF END OF EMPLOYMENT RELATIONSHIP UPON FILING OF COMPLAINT WITH USCIS

In Innawalli v. American Information Technology Corp. , ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006), the Respondent had sponsored the Alien/Complainant as an H-1B non-immigrant worker, and the Complainant ultimately won a complaint that the Respondent violated the no-benching provision of the INA. An issue not resolved by the ALJ was the date when the Complainant's employment actually ended. The ARB recited that in March of 2003, the Complainant tried urgently � but without success � to obtain from the Respondent an INS Form I-94 to facilitate a trip to India. On April 7, 2003, she approached USCIS to file a complaint against the Respondent. The ARB found that, under the special nature of the employment relationship between the Complainant and the Respondent, the parties mutually intended to end their employment relationship on the date that the Complainant filed the complaint with USCIS. The ARB limited its holding to the specific facts of the case, observing that it was not finding, or even suggesting "that a party's approach to the USCIS or the DOL to enforce his or her H-1B rights under the INA necessarily evinces an intention by that party to end the employment relationship."

LABOR CONDITION APPLICATION; COST OF RETURN TRANSPORTATION

LABOR CONDITION APPLICATION; BACK PAY AWARD; PREJUDGMENT AND POST JUDGMENT INTEREST

A complainant who is entitled to back wages based on the Respondent's violation of the INA's no-benching provision for H-1B non-immigrant workers, is also entitled to prejudgment compound interest on the back pay award and post judgment interest until the Respondent satisfies the debt. Such interest is calculated according to the procedures set out in Doyle v. Hydro Nuclear Serv ., ARB Nos., 99-041, 99-042, 00-012, ALJ No. 1989-ERA-22, slip op. at 18-21 (ARB May 17, 2000). Innawalli v. American Information Technology Corp. , ARB No. 04-165, ALJ No. 2004-LCA-13 (ARB Sept. 29, 2006). To the same effect Amtel Group of Florida, Inc. v. Yongmahapakorn , ARB No. 04-087, ALJ No. 2004-LCA-6 (ARB Sept. 29, 2006).

Platone v. FLYi, Inc. , ARB No. 04-154, ALJ No. 2003-SOX-27 (ARB Sept. 29, 2006) (formerly Atlantic Coast Airlines Holdings, Inc.)

Title: Final Decision & Order

Links: PDF

Summary:

BANKRUPTCY; AUTOMATIC STAY OF ADMINISTRATIVE PROCEEDING; STIPULATION UNDER BANKRUPTCY RULE 9019

In Platone v. FLYi, Inc. , ARB No. 04-154, ALJ No. 2003-SOX-27 (ARB Sept. 29, 2006), the Respondent had filed for Chapter 11 bankruptcy protection. The ARB, however, was enabled to issue its Final Decision and Order because the Bankruptcy Court issued an order under Rule 9019 of the Fed. R. of Bankruptcy Procedure approving a stipulation of the parties to modify the automatic stay to permit the ARB to issue its decision.

PROTECTED ACTIVITY; FEDERAL MAIL AND WIRE FRAUD STATUTES; ALLEGED FRAUD MUST BE OF TYPE ADVERSE TO INVESTOR'S INTERESTS

In Platone v. FLYi, Inc. , ARB No. 04-154, ALJ No. 2003-SOX-27 (ARB Sept. 29, 2006), the ARB held that when a SOX whistleblower complaint is grounded in Federal mail and wire fraud statutes, "the alleged fraudulent conduct must at least be of the type that would be adverse to investor's interests." USDOL/OALJ Reporter at 15 (footnote omitted). The ARB cited in support of this holding the fact that the preamble to the SOX states: " To protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws, and for other purposes. Sarbanes-Oxley Act of 2002, Pub L. No. 107-204, 116 Stat. 745 (2002) (emphasis added)."

PROTECTED ACTIVITY; REQUIREMENT THAT COMPLAINANT'S COMMUNICATIONS "DEFINITELY AND SPECIFICALLY" RELATE TO FRAUD OR SECURITIES VIOLATIONS

In Platone v. FLYi, Inc. , ARB No. 04-154, ALJ No. 2003-SOX-27 (ARB Sept. 29, 2006), the ARB held that

In defining the scope of protected activity under other Federal whistleblower protection provisions, the Board has held that an employee's protected communications must relate "definitively and specifically" to the subject matter of the particular statute under which protection is afforded. The Corporate and Criminal Fraud Accountability Act of 2002 does not provide whistleblower protection for all employee complaints about how a public company spends its money and pays its bills. Rather, under the SOX, the employee's communications must "definitively and specifically" relate to any of the listed categories of fraud or securities violations under 18 U.S.C.A. § 1514A(a)(1). Thus, for example, an employee's disclosure that the company is materially misstating its financial condition to investors is entitled to protection under the Act.

USDOL/OALJ Reporter at 17 (footnote omitted). In Platone , the Complainant's actions in raising a possible issue that might affect the Respondent's ability to collect a debt, working with a senior manager to try to resolve the billing problem, and continued efforts to address the billing issues -- none of which provided specific information regarding fraud against shareholders -- were not protected activity

PROTECTED ACTIVITY; WHAT WAS ACTUALLY COMMUNICATED TO THE RESPONDENT, RATHER THAN WHAT WAS ALLEGED IN THE COMPLAINT, DETERMINES WHETHER THERE WAS PROTECTED ACTIVITY

In Platone v. FLYi, Inc. , ARB No. 04-154, ALJ No. 2003-SOX-27 (ARB Sept. 29, 2006), the ARB indicated that in determining whether a complainant engaged in protected activity, the relevant inquiry is not what was alleged in the complaint, but what was actually communicated to the respondent prior to the adverse action. In the instant case, the ARB determined that contrary to what the Complainant alleged in her OSHA complaint, she had not informed managers"the company had created, or had acquiesced in, a scheme to funnel improper payments to members of the union's master executive council." Rather, reviewing the evidence of e-mails and conversations contained in the record, it was demonstrated that the Complainant did not provided her employer with specific information regarding "any conduct the employee reasonably believes constitutes a violation of 18 U.S.C.§§ 1341[mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders."

PROTECTED ACTIVITY; ALLEGED SEC RULE 10B-5 VIOLATION MUST IMPLICATE BASIC ELEMENTS OF SECURITIES FRAUD, AND POTENTIAL LOSS MUST BE MATERIAL TO A REASONABLE SHAREHOLDER

In Platone v. FLYi, Inc. , ARB No. 04-154, ALJ No. 2003-SOX-27 (ARB Sept. 29, 2006), the ARB held that the Complainant's allegation that the Respondent had violated SEC Rule 10b-5 was baseless where her revelations about a potential billing problem did not even approximate any of the basic elements of a claim of securities fraud [ i.e ., a material misrepresentation (or omission), scienter, a connection with the purchase, or sale of a security, reliance, economic loss and loss causation], where she did not identify a fraudulent scheme "in connection with the purchase or sale of any security," and where she testified to less than $1,500 in potential losses (which would be unlikely to be considered "material" by a reasonable shareholder).

Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006)

Title: Final Decision & Order

Links: PDF

Summary:

PROTECTED ACTIVITY; REQUEST FOR DEVIATION LETTER FROM HOURS OF WORK LIMITS UNDER NRC GENERIC LETTER 82-12

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), the Complainant alleged that he was fired because he engaged in protected activity when he complained about the Respondent's violations of NRC Generic Letter 82-12, which limits the amount of overtime that staff members performing safety-related functions may work. The Complainant had been called into work that would have put him in violation of the NRC rule. He repeatedly requested, but was not provided, a deviation letter as provided for in the Rule. The Respondent contended that this amounted to mere administrative requests for a form and did not implicate nuclear safety. The ARB disagreed, noting that the clear objective of the NRC rule was "to prevent situations where fatigue could reduce the ability of operating personnel to keep the reactor in a safe condition." The ARB found a causal relation between the Complainant's actions and his discharge because of temporal proximity, evidence that the Respondent had been hostile to the NRC rule, and findings that the Respondent proffered false reasons for firing the Complainant. Because the proffered reasons were not legitimate, the ARB found that the Respondent had not presented clear and convincing evidence that it would have taken adverse action against the Complainant even in the absence of protected activity.

AFTER ACQUIRED EVIDENCE; VIOLATION OF COMPANY POLICY DOES NOT SUPPORT TRUNCATION OF BACK PAY AWARD WHERE THE POLICY HAD NOT BEEN USED TO SUPPORT DISCIPLINE OF OTHER EMPLOYEES

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), the Respondent presented evidence it had obtained after the Complainant's termination that the Complainant had violated company e-mail policy, and argued that its liability for back pay should have ended when it discovered this independent basis for firing the Complainant. The ARB recognized that such evidence is relevant to the issue of damages, but reviewing the hearing testimony, concluded that such e-mail violations had not lead in the past to discipline, and therefore, the Respondent's assertion that it would have fired the Complainant for this reason was "tantamount to an acknowledgment that [the Respondent] would have treated the Complainant differently from other employees...." USDOL/OALJ Reporter at 9.

DAMAGES; FRINGE BENEFITS; UNCERTAINTY RESOLVED IN FAVOR OF THE COMPLAINANT

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), the ARB affirmed the ALJ's award of fringe benefits in the amount of 33% of the Complainant's annual salary, noting that "any uncertainty in the exact dollar amount of fringe benefits must be resolved in favor of [the Complainant] and against [the Respondent] as the discriminating party. McCafferty v. Centerior Energy , 96-ERA-6, slip op. at 7 (ARB Sept. 24, 1997).

DAMAGES; COMPLAINANT MAY RECOVER VALUE OF HEALTH INSURANCE FRINGE BENEFITS OR COST OF SUBSTITUTE COVERAGE, BUT NOT BOTH

A complainant may recover the value of health insurance fringe benefits paid by his employer or the cost of purchasing substitute coverage, but not both. Thus, in Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), the ALJ erred in awarding $10,774 to reimburse the Complainant for his costs in purchasing replacement of his health and dental insurance, and also $44,074 to cover the net lost value of fringe benefits. The ARB found that the fringe benefit award presumably included premiums the Respondent would have paid for health and dental insurance. The ARB held that the ALJ's ruling resulted in a double recovery of health and dental insurance benefits, and therefore reversed the award of $10,774 for replacement insurance.

REINSTATEMENT; WHERE NO PARTY CONTESTS ALJ'S ERRONEOUS AWARD OF FRONT PAY IN LIEU OF REINSTATEMENT, THE ARB WILL FIND THE ISSUE WAIVED

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), the Complainant testified that he was wary of returning to his job, but stated that he requested reinstatement. Without extended discussion, the ALJ awarded front pay in lieu of reinstatement. The ARB noted that under applicable law and the record before it, reinstatement would have been the appropriate remedy. However, because neither party raised reinstatement as an issue on appeal, it accepted the ALJ's recommended remedy of front pay.

FRONT PAY; DISCOUNT TO PRESENT VALUE

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), the ARB, although acknowledging that a front pay award is typically discounted to present value, declined to apply a discount rate in the appeal before it because the period of the front pay award had already ended before the appeal was decided and because the Complainant had not yet received his front pay.

Walton v. Nova Information , ARB No. 06-100, ALJ Nos. 2005-SOX-107, 2006-SOX-18 (ARB Sept. 29, 2006)

Title: Final Decision & Order Denying Interlocutory Appeal

Links: PDF

Summary:

The Respondent filed an appeal of the ALJ's order denying a motion to dismiss. The ARB issued an order to show cause why the Board should not dismiss its interlocutory appeal basd on its strong policy against piecemeal appeals. The Respondent did not respond, and the ARB dismissed the interlocutory appeal.

United States Dept. of the Interior, National Park Service, Denali National Park and Preserve , ARB No. 06-145 (ARB Sept. 29, 2006)

Title: Order Closing Case

Links: PDF

Summary:

The Department of the Interior had been granted an enlargement of time to file a petition for review of the Acting Administrator's ruling, but later informed the ARB that it had decided not to file such a petition.

Dale v. Step 1 Stairworks, Inc. , ARB No. 06-057, ALJ No. 2002-STA-30 (ARB Sept. 28, 2006)

Title: Final Decision & Order Approving Settlement & Dismissing Complaint

Links: PDF

Summary:

Approval of settlement agreement.